Is Mayhem To Be Expected At A Rock 'N' Roll Show?

AUSTIN, TEXAS — It was just three songs into the Jesus Lizard's set at Liberty Lunch that the beer can came flying off the stage courtesy of lead singer David Yow.

"I was watching the show, and the next thing I know the guy in front of me ducked and I was hit in the face," said Melissa Slepekis, who subsequently sued the Chicago-based band and the Austin venue, claiming she sustained a serious jaw injury in the 1996 incident.

Lawyers on both sides in the civil suit contend this may be the first time a jury has considered the issue of negligence in relation to rock performers and their audience; most similar suits are settled out of court or tried as criminal cases. Among the questions it raises for the concert industry: How much risk does a concertgoer assume by attending a rock 'n' roll performance? And how responsible is a nightclub for the artists it allows to perform?

Last Thursday, Slepekis lost her case. An Austin jury ruled that neither the Jesus Lizard nor Liberty Lunch acted negligently and awarded no damages.

The Jesus Lizard's attorney, Marcy Rothman, had argued in court that the band plays an unpredictable and dynamic form of hard rock where tossing items from the stage is a part of the band's routine. Furthermore, she argued that Slepekis should have and did know what type of show she was attending.

In this way, the ruling seemed to follow the precedent set by "foul ball" case law concerning fans at sporting events. For example, in 1993 a Texas appeals court ruled that golfers who choose to participate in the sport assume the risk of being struck by stray balls on adjacent fairways.

"I think what's reasonable in terms of the environment that adult people voluntarily place themselves in is really the central issue," Rothman said. "These aren't just concerts like the symphony hall presents. These are performances and they're interactive performance to a large degree. When you buy a ticket to a concert, you have to know what kind of group and what kind of music you're selecting. It's a free and voluntary choice."

Slepekis' attorney, John T. Anderson, countered that even if his client had been aware of the particulars of a Jesus Lizard performance -- and he contends that she didn't -- the action by Yow still was irresponsible.

"Melissa and (her husband) Jeremy were not part of the show," Anderson says. "They were trying to watch the show. And in my mind, there is a clear difference. I think David and any other performer up there ought to respect that difference. If you invite the public to your show, I think there really ought to be an implied covenant that you're not going to hurt the audience in the process."

Anderson also argued that although Liberty Lunch had signed over full control of the Jesus Lizard's performance to the band itself -- a standard feature of concert-related contracts -- the club assumed some liability when it did not attempt to limit the band's interaction with the audience.

The crucial issues for concert venues, said Liberty Lunch attorney Geoffrey Pivateau, lies in how a club could foresee the actions of the hundreds of bands they present each year and how it could attempt to restrict certain aspects of a band's performance without losing business.

"I think (this verdict) means we're safe in relying on the ultimate liability being apportioned to the band," Pivateau said. "Bands are responsible for their own act, because we established they aren't agents, employees or partners of the clubs they play."

Although both Liberty Lunch and the Jesus Lizard were cleared of negligence, there has been some debate as to why the jury ruled the way it did. It's possible that the jurors based their decision on medical testimony for the defense indicating that the can could not have injured Slepekis.

Or, as Rothman contends, they may have accepted her argument that Yow's action was an acceptable part of a hard rock performance.

"A group of jurors specifically told me that they felt we had proved the conduct of the Jesus Lizard and David Yow were reasonable for a rock 'n' roll band," Rothman said. "They believed that the boys act as other bands do and this is a reasonable course of conduct for these type of shows. I think it is definitely an absolute validation of the band."

Both sides said it ultimately will be up to other bands, concertgoers, clubowners and juries to interpret and act on the Slepekis jury's decision. But even in defeat, Anderson says he believes it would be wrong to assume that the jury in effect declared open season on concertgoers.

"I think that most people will continue to behave sensibly," Anderson said, "and I think it is wrong to read this verdict as `People who go to rock concerts always deserve what they get.' . . . One side or another always thinks the jury is wrong, yet I just think it would be a big mistake for bands and venues if they thought concertgoers were now fair game."